Michael Greenleaf appeals from an order of the Court of Common Pleas of Philadelphia County that granted a motion for summary judgment on behalf of the Southeastern Pennsylvania Transportation Authority (SEPTA) and dismissed Greenleaf's suit. The issues presented are whether the trial court erred in granting summary judgment and holding that the vehicle liability exception to sovereign immunity in Section 8522(b)(1) of the Judicial Code, 42 Pa. C.S. § 8522(b)(1), did not apply to the facts of this case and whether the trial court erred in determining that there were no genuine issues of material fact and that SEPTA was entitled to judgment as a matter of law.

In his deposition, Greenleaf alleged that at approximately 6:00 p.m. on July 7, 1993, he was a passenger riding on SEPTA's southbound Broad Street Line subway when an unknown individual got on the train at the Columbia Station. This individual asked Greenleaf the time, sat down next to him, then pulled a gun and pointed it at Greenleaf and demanded that he empty his pockets. Greenleaf and another individual stood up to obey the command. The passengers screamed when they saw the weapon, and the gunman attempted to shoot several times but his weapon misfired. Greenleaf dodged and ducked the potential shots while the train pulled into the station. The trainman, who allegedly viewed the incident, did not open the doors for about 30 seconds after the train had stopped. The gunman fired one more time and struck Greenleaf, who was trying to escape out the door. Greenleaf was injured when shot in the right flank by the gunman.

I.

Following the close of pleadings and discovery, SEPTA filed a motion for summary judgment on the grounds that as a Commonwealth agency it is entitled to sovereign immunity and that it cannot be held liable for the criminal conduct of third parties. The trial court agreed and granted the motion, noting that where the injury is caused by a tortious act of a third party, the vehicle liability exception to sovereign immunity does not apply. *fn1

This Court's scope of review of the trial court's grant of summary judgment is limited to determining whether the trial court committed an error of law or an abuse of discretion. Wolfe by Wolfe v. Stroudsburg Area School Dist., 688 A.2d 1245 (Pa. Commw. 1997). Summary judgment is appropriate only where, after viewing the record, i.e., the pleadings, depositions, answers to interrogatories, admissions and affidavits, if any, in the light most favorable to the non-moving party, the court concludes that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Id.

Greenleaf claims that the trial court erred in determining that the vehicle liability exception did not apply. In particular, he alleges that the trainman, who was aware of the situation, acted negligently in failing to open the car doors to permit him to escape once the train had stopped. Greenleaf maintains that this conscious act by the trainman rendered the "operation" of the train a substantial contributing factor to the infliction of the gunshot wounds. Greenleaf relies on Sonnenberg v. Erie Metropolitan Transit Authority, 137 Pa. Commw. 533, 586 A.2d 1026 (Pa. Commw. 1991), and Vogel v. Langer, 131 Pa. Commw. 236, 569 A.2d 1047 (Pa. Commw. 1990), cases that are factually dissimilar. In both cases, the victims' injuries were the direct result of the bus drivers' operation of the vehicles; neither case involved a criminal assault.

In Sonnenberg a bus passenger was caught in the rear door of the bus and injured while trying to exit. The Court held that "operation" of the bus included the opening and closing of its doors. In Vogel the Court held that a SEPTA bus driver's actions in waiving another motorist into the intersection and thereby causing a collision constituted "operation" of a vehicle for purposes of the vehicle liability exception to sovereign immunity. Here, neither the movement of the train nor any of its moving parts caused Greenleaf's injuries. Instead, he was the victim of a criminal assault by a third party.

Greenleaf also cites Toombs v. Manning, 835 F.2d 453 (3rd Cir. 1987), a criminal assault case where the Third Circuit Court of Appeals concluded that the operation of a SEPTA subway train included the boarding and discharging of passengers onto SEPTA platforms and that SEPTA could be found liable under the vehicle liability exception where the plaintiff was injured after an attack by two men while waiting for a train at a SEPTA subway station. The attack occurred within sight of a SEPTA cashier and a SEPTA trainman. The plaintiff stumbled into the path of an oncoming train after the attack and suffered serious injuries. However, in Southeastern Pennsylvania Transportation Authority v. Hussey, 138 Pa. Commw. 436, 588 A.2d 110 (Pa. Commw. 1991), appeal denied, 530 Pa. 649, 607 A.2d 258 (1992), the Court noted that in light of Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987), the Pennsylvania Supreme Court would have reached a different result than that reached in Toombs.

In Mascaro the Supreme Court interpreted the real estate exception to governmental immunity set forth in Section 8542(b)(3) of the Judicial Code, 42 Pa. C.S. § 8542(b)(3), and determined that the harm caused by third parties cannot be imputed to local agencies or their employees under any of the eight exceptions to governmental immunity in Section 8542. In Hussey the Court noted that the language of the vehicle liability exception to sovereign immunity was identical to that for local governmental immunity, and, as a result, the Court ...

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